Citation Nr: 0625036
Decision Date: 08/15/06 Archive Date: 08/24/06
DOCKET NO. 03-35 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased disability rating for bilateral
tinnitus, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
K.A. Kennerly, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
September 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision of the
Detroit, Michigan, Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied the veteran's claim for
an increased disability rating for tinnitus, from 10 percent
disabling.
FINDING OF FACT
The veteran's service-connected (bilateral) tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation in excess of 10 percent for bilateral tinnitus.
38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic
Code 6260 (2002, 2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran, who is in receipt of a single 10 percent rating
for bilateral tinnitus under Diagnostic Code 6260, argues
that because he has tinnitus in both ears, he should be
awarded separate 10 percent ratings for each ear.
Historically, VA has evaluated tinnitus as a single
disability, with a maximum rating of 10 percent, whether
bilateral or not. However, prior to June 13, 2003,
Diagnostic Code 6260 did not explicitly state that tinnitus
could only be assigned a single 10 percent disability rating;
it simply provided that recurrent tinnitus warranted a 10
percent rating. 38 C.F.R. § 4.87, DC 6260 (1999). Before
1999, a 10 percent rating was assigned only when there was
persistent tinnitus as symptom of head injury, concussion or
acoustic trauma. 38 C.F.R. Part 4, Code 6260 (1998).
In November 2002, VA proposed to revise Diagnostic Code 6260
to "state more explicitly" the manner in which tinnitus was
to be evaluated. "The intended effect of this action is to
codify current standard VA practice by stating that recurrent
tinnitus will be assigned only a single 10-percent
evaluation, whether it is perceived in one ear, both ears, or
somewhere in the head." 67 Fed. Reg. 59,033 (September 19,
2002). In support of its position, VA cited to medical
studies, and observed that "true" tinnitus, defined as
"the perception of sound in the absence of an external
stimulus," appeared to arise from the brain rather than the
ears.
VA adopted the proposed amendments, effective June 13, 2003.
Diagnostic Code 6260, which already provided for a rating of
10 percent for recurrent tinnitus, was revised to include
explanatory notes; the second note, pertinent to this appeal,
reads: "Assign only a single evaluation for recurrent
tinnitus, whether the sound is perceived in one ear, both
ears, or in the head." 38 C.F.R. § 4.87, Diagnostic Code
6260, Note 2 (2005).
Additionally, in a precedent opinion, VA's Office of General
Counsel held that Diagnostic Code 6260, as in effect prior to
June 13, 2003, likewise "authorized a single 10% disability
rating for tinnitus, regardless of whether tinnitus is
perceived as unilateral, bilateral, or in the head. Separate
ratings for tinnitus for each ear may not be assigned under
DC 6260 or any other diagnostic code." VAOPGCPREC 2-2003
(May 2003).
Subsequently, however, in 2005, the United States Court of
Appeals for Veterans Claims (Court) found that the pre-June
2003 versions of Diagnostic Code 6260, when considered in
conjunction with 38 C.F.R. § 4.25(b), required that bilateral
tinnitus be rated separately for each ear. Smith v.
Nicholson, 19 Vet. App. 63 (2005). VA appealed this decision
to the United States Court of Appeals for the Federal Circuit
(Federal Circuit), and stayed adjudication of claims and
appeals affected by this decision, e.g., claims for
evaluations in excess of 10 percent for tinnitus filed before
June 13, 2003.
In June 2006, the Federal Circuit reversed the Court's
decision in Smith, finding that 38 C.F.R. § 4.25(b) and
Diagnostic Code 6260 were ambiguous as to the question of
whether tinnitus in each ear can be a separate disability,
and, thus, VA was entitled to apply its own construction.
Smith v. Nicholson, No. 05-7168, slip op. at 11 (Fed. Cir.
June 19, 2006). The Federal Circuit held that VA's
interpretation was neither plainly erroneous nor inconsistent
with the regulations, and, thus, the Court erred in not
deferring to VA's reasonable interpretation of its own
regulations. Id., at 12-13.
As applied to the veteran's appeal, the effect of the actions
described above is to prohibit the assignment of separate 10
percent ratings for tinnitus of each ear under Diagnostic
Code 6260, as in effect both before and as of June 13, 2003.
VA's longstanding interpretation of the regulations to allow
a maximum rating of 10 percent for tinnitus was upheld by
judicial precedent, and the revised regulation effective June
13, 2003 expressly requires that tinnitus be evaluated as a
single disability, whether bilateral or unilateral. Thus,
separate 10 percent ratings for tinnitus of each ear are
precluded, under the old and new versions of the regulation,
and neither version is more favorable than the other. Under
these circumstances, the disposition of this claim is based
on the law, and not the facts of the case, and the claim must
be denied based on a lack of entitlement under the law. See
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants. However, the facts are not in
dispute, and where, as in this case, the decision rests on
the interpretation of the law, the VCAA is inapplicable. See
Dela Cruz v. Principi, 15 Vet.App. 143 (2001). Similarly,
compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim. See Wensch v.
Principi, 15 Vet. App. 362, 368 (2001). Therefore, any
deficiencies of VCAA notice or assistance are rendered moot.
ORDER
Entitlement to an increased disability rating for bilateral
tinnitus, currently evaluated as 10 percent disabling, is
denied.
____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs